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Mr. Feichthaler:
I have owned a lot in Cape Coral for 18 years, where I intended to build our retirement home. I selected a builder and, when they went to get the permit, they were told that the property was now commercial and I cannot build? There must be some mistake!
-- Carol C.
Dear Carol:
You are facing a problem faced by hundreds of property owners in Cape Coral, and it is truly unfortunate. After I left office, the city council initiated several large-scale land use and zoning changes in the city to increase, or at least give the appearance of increase, of commercial property. Although some blocks were appropriately changed in my view, some blocks already had significant residential housing. The change several years back would have been noticed to you by mail of the hearing, although most people pay these notices little mind. About three years ago, the council made changes that were so vast, that the law allowed for notice by publication in the newspaper, rather than mailed notice. I am aware of dozens of people that were impacted that had no idea of the coming change.
For people that already have homes on lands that changed from residential to commercial, the residential use is still allowable, and could be re-built if a disaster ever occurred to the home. However, it should be noted that if an owner in this situation sold to a new owner, the new owner is NOT grandfathered in, and could not rebuild after a disaster. This fact can lead to the inability of a new buyer to obtain homeowner's insurance.
Many ask what can be done to change the property back to residential. A land use and zoning change would be needed. Generally speaking, the city council has been very reluctant to change any commercial properties to residential, particularly when at or near major road corridors (Chiquita Boulevard is the road with the most properties in this situation). Plus, the costs, if you represent yourself, would exceed $1,000.00 to pursue. I do recommend seeking legal advice, as every situation is unique. If you recently bought it and the owners misrepresented the character of the property, there are potential legal remedies. However, generally speaking, you likely have little chance of rezoning these types of properties.
You may know that lots have increased in value dramatically over the past year. For many of my clients, the advice given is to sell what you have at the highest possible price (disclosing the zoning of the property), and buy a residential property in a more residential location. You may find that you will own a better building lot, and have money in your pocket, because many times the commercial properties can sell for more than similarly-situated residential lots. Good luck!
Eric P. Feichthaler has lived in Cape Coral for over 33 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.
Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.
This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.